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1:2.Duty versus negligence, Architects and Engineers 1:2 (4th ed.)

Architects and Engineers 1:2 (4th ed.)

Architects and Engineers
Database updated June 2014
James Acret and Annette Davis Perrochet
Chapter 1. Liability for Negligence
References
1:2. Duty versus negligence
Within the analysis of an architect's malpractice exists a classic and confusing debate: Does
liability require the presence of both duty and negligence, or is duty merely one of the
components of negligence? In Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928),
Judge Cardozo said that negligence is not actionable unless it involves the invasion of a legally
protected interest, the violation of a right. Proof of negligence in the air, so to speak, will not
do. F. Pollock, Torts 455 (11th ed). Thus, according to the majority in Palsgraf, it is for the
law to say whether the defendant is under a duty to protect the plaintiff, and then for the jury
to determine whether the defendant was negligent.
According to the minority in Palsgraf, once it is determined that an act is negligent, it is no
longer necessary to look to see if there was a duty. Duty is just an element in determining the
existence of negligence, and, if an architect is negligent and the plaintiff is harmed, the architect
is liable.
The minority view was followed in holding an architect liable for economic loss suffered by a
tenant supermarket despite lack of privity. The architect had argued that there was no privity
of contract since the architect had been employed by the building owner rather than by the
tenant. The plaintiff alleged that the architect failed to diagnose the condition of subsoil, causing
the supermarket floor to settle unevenly so that the premises became untenable. The architect's
demurrer was overruled. The Wisconsin Supreme Court AFFIRMED. A. E. Inv. Corp. v. Link
Builders, Inc., 62 Wis. 2d 479, 214 N.W.2d 764 (1974). A tenant may have a good cause of
action against an architect not in privity. In fact, [p]rofessionalism is the very antithesis to
irresponsibility to all interests other than those of an immediate employer.
On the other hand, following the majority concept in Palsgraf, the Supreme Court of Louisiana
reversed a trial court judgment for wrongful death on the ground that the architect had no duty
to a worker who was scalded to death when a boiler exploded for lack of a thermostat or a relief
valve. The contract documents required the thermostat and the pressure relief valve on the boiler,
but the subcontractor mistakenly installed these devices on a hot water storage tank; therefore,
as soon as the boiler was fired, an explosion was inevitable. The architect's contract with the
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1:2.Duty versus negligence, Architects and Engineers 1:2 (4th ed.)

owner required that the architect furnish supervision to reasonably ensure strict conformity with
the contract documents, but the court held that this merely meant the architect had a duty to the
owner to see that the overall job would comply with the contract documents before acceptance
of the building. The architect had no duty to inspect the hot water system during its installation
in order to protect workers from a potential explosion. Day v. National U. S. Radiator Corp.,
241 La. 288, 128 So. 2d 660 (1961).
In a similar ruling, the Supreme Judicial Court of Massachusetts held that the designer of a
septic system is under no duty to prevent an occupier of land from suffering mental anguish
caused by a flood of sewage. McDonough v. Whalen, 365 Mass. 506, 313 N.E.2d 435 (1974).
In Wicks v. Milzoco Builders, Inc., 291 Pa. Super. 345, 435 A.2d 1260 (1981), order vacated on
other grounds, 503 Pa. 614, 470 A.2d 86 (1983), four homeowners brought an action alleging
negligence, breach of implied and express warranties, and strict liability against a surveyor
hired to set boundary lines of lots and lay plans for the sewage and drainage lines in a housing
development. The court concluded that the degree of foreseeability that the surveyor's improper
performance will lead to the plaintiffs' injuries determines whether there is a duty imputed to the
surveyor. The court ruled that the homeowners' complaint stated a cause of action in negligence
since the surveyor reasonably should have foreseen that faulty preparation of drainage plans
could result in water damage to homes in the development.
In another case based on the issue of foreseeability, Mears Park Holding Corp. v. Morse/
Diesel, Inc., 427 N.W.2d 281 (Minn. Ct. App. 1988), a lender, having foreclosed its deed of
trust, filed an action against an architect who had been employed by a real estate developer
who had gone into default. The lender alleged negligent performance by the architect of its
duties to the developer. The court dismissed the action against the architect. AFFIRMED.
Design professionals who breach their professional duties are liable in negligence only to
those who foreseeably rely upon their professional services. The possibility that the architect's
activities would have injured the lender following the developer's default was too remote to be
foreseeable.
In Eastern Steel Constructors, Inc. v. City of Salem, 209 W. Va. 392, 549 S.E.2d 266 (2001),
a contractor sued a design firm that was hired to provide engineering and architectural services
in connection with improvements to the citys sewer system. After beginning the project, the
contractor experienced significant delays caused by sub-surface rock conditions and utility lines
not disclosed by the design firm. Consequently, the contractor claims that it incurred substantial
actual and consequential damages. Additionally, the contractor claims that the design firms
failure to properly administer and manage the project caused further financial damage. Summary
judgment for the design firm was REVERSED. 1) A defendant in a negligence action becomes
liable not because of a breach of a contractual relationship but because of a breach of duty
resulting in an injury. A breach of the duty to use care will be found if it is foreseeable that
harm may result if the requisite care is not exercised. If an ordinary person in the defendants

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1:2.Duty versus negligence, Architects and Engineers 1:2 (4th ed.)

position, knowing what the defendant knew or should have known, could anticipate that harm of
the general nature of that suffered was likely to result, then the duty of care has been breached.
Moreover, whether the defendant owes a duty of care to the plaintiff is a question of law to be
determined by the court. 2) An architect or engineer owes a duty of care to a contractor, who is
employed by the same owner and who has relied on the design professionals work product in
carrying out his or her obligations to that owner, even if there is no privity of contract between
the contractor and the design professional. A special relationship exists between the two. Thus, a
contractor may recover purely economic damages in an action alleging professional negligence
on the part of the design professional. Generally, the duty of care owed by a design professional
to a contractor, where a special relationship exists, is to render his or her professional services
with the ordinary skill, care, and diligence appropriate for members of his or her profession
under the same or similar circumstances. 3) The requirement of privity of contract in an action
for breach of an express or implied warranty in West Virginia is hereby abolished. 4) A design
professional who provides plans and specifications for a contractor to use in carrying out some
aspect of a design impliedly warrants to the contractor that such plans and specifications have
been prepared with the ordinary skill, care, and diligence appropriate for members of his or her
profession. No privity of contract is required for this warranty to exist.
In 17 Vista Fee Associates v. Teachers Ins. and Annuity Ass'n of America, 259 A.D.2d 75, 693
N.Y.S.2d 554 (1st Dep't 1999), a contractor sued an engineer for indemnity and negligence in
connection with the design of a smoke purge system. The contractor was hired to construct and
sell a building to the Teachers Insurance and Annuity Association of America (TIAA), and the
engineer was hired by the contractor to design a smoke purge system. The building was sold to
TIAA 1990. In 1992, construction was completed, but a certificate of occupancy was not issued
because the smoke purge system did not pass inspection. In 1995, a second fan was added to the
smoke purge system, and it passed inspection. The contractor sued TIAA for the amount still
owed, and TIAA counterclaimed seeking $452,000 for breaches relating to the smoke purge
system. The contractor filed this action against the engineer and entered a settlement agreement
with TIAA. Summary judgment for the engineer was REVERSED. 1) [A] contractor seeking
indemnity must have delegated exclusive responsibility for the duties giving rise to the loss
to the party from whom indemnification is sought. Vista Fee Associates, 693 N.Y.S.2d at
558. Here, the trial court improperly dismissed the contractors implied indemnification claim.
Although the contractor was contractually required to complete all the certificate of occupancy
obligations, full responsibility for the design of the smoke purge system was delegated to the
engineer. 2) The trial court erred in holding that the contractor was not entitled to indemnity
because it was a wrongdoer itself. The contractor only sought indemnity for the portion of the
settlement relating to the smoke purge system. The third-party claim did not mention the other
damages sought by TIAA, which were attributable to the contractors own actions. 3) Although
a breach of contract does not give rise to a tort claim unless a legal duty independent of the

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1:2.Duty versus negligence, Architects and Engineers 1:2 (4th ed.)

contract has been violated, professionals may be subject to tort liability if they fail to exercise
reasonable care. A legal duty independent of contractual obligations may be imposed by law as
an incident to the parties relationship. Vista Fee Associates, 693 N.Y.S.2d at 558. Moreover,
the fact that the contractor only suffered economic losses is irrelevant in this malpractice claim
against a professional.
In Paz v. State of California, 22 Cal. 4th 550, 93 Cal. Rptr. 2d 703, 994 P.2d 975 (2000), the
plaintiff motorcyclist was injured in a collision at the T intersection of Osborne Street and
Foothill Boulevard, allegedly because a blind curve obstructed the view of southbound drivers
making a left turn so that they could not see traffic headed westbound on Foothill. The defendant
developer had employed defendant contractors and engineers to design and install a traffic signal
which was required as a condition to the approval of development. The signals were not in
operation on January 12, 1991, two years after the defendants started the signal project. There
were several causes of delay including the slowness of the citys approval process, failure of the
city to apply to Caltrans for an encroachment permit, and a dispute between Caltrans and the
city about striping. The final permit was not issued until a few days after the accident. The trial
court granted summary judgment for the defendants, the Court of Appeal reversed the decision
of the trial court, and the Supreme Court reversed the decision of the Court of Appeal. The
general rule is that a person who has not created a peril is not liable in tort for failing to take
affirmative action to protect another unless they have some relationship that gives rise to a duty.
The court noted that the Restatement 2d of Torts, 324A reads:
One who undertakes, gratuitously or for consideration, to
render services to another which he should recognize as
necessary for the protection of a third person or his things,
is subject to liability to the third person for physical harm
resulting from his failure to exercise reasonable care to
[perform] his undertaking, if (a) his failure to exercise
reasonable care increases the risk of such harm, or (b) he has
undertaken to perform a duty owed by the other to the third
person, or (c) the harm is suffered because of reliance of the
other or the third person upon the undertaking.
Here, none of the three conditions (a, b, or c) was fulfilled. With respect to (a), defendants did
nothing to increase the risk to motorists that allegedly existed because of the sight lines. Nothing
changed but the passage of time, and a failure to alleviate a risk cannot be regarded as the
same thing as increasing that risk. With respect to (b), the developer was under no contractual
obligation to install a signal. The required installation was nothing more than a condition to
approval of a real estate development. With respect to (c), there was no evidence of reliance by
either the plaintiff or the city on the timely installation of signals.

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In Hobson v. Waggoner Engineering, Inc., 878 So. 2d 68 (Miss. Ct. App. 2003), the
administratrix of the estate of a deceased worker brought a wrongful-death action against
an engineering company and a manufacturer. The engineering company had been hired to
design a lagoon as part of expansion of a citys wastewater treatment plant. The manufacturer
manufactured and installed a liner around the lagoon. The decedent had been an employee of
an electrical subcontractor hired by the general contractor on the project. The decedent was
working near the lagoon, and his body was later found submerged. No one saw the decedent
enter the lagoon, and there was no evidence as to who or what had caused him to enter the
lagoon. The administratrix maintained that the decedents death was a result of the excessive
slipperiness of the lagoon lining. The trial court determined that neither the engineering
company nor the manufacturer had owed a duty to the decedent. Summary judgments for the
defendants were AFFIRMED. 1) The engineering company did not contract for or assume any
responsibility for the supervision of the construction site. Therefore, it had no duty to warn the
decedent or any workers employed by the contractor or its subcontractors of any dangers or to
protect them from any harm. 2) There was no evidence that the engineering company had failed
to meet its duty to exercise ordinary professional skill and diligence in designing the lagoon.
3) Since the lagoon presented no dangers that were not readily apparent, the manufacturer
owed no duty to the decedent to warn of the dangers on the construction site. 4) There was no
evidence of any industry standards or customs indicating that an alternate design was available
that would have prevented the decedents injury; therefore, the record showed no evidence that
the manufacturers liner was defectively designed.
Gross Negligence
In O'Neill v. Soils & Structures, Inc., 2002 WL 31297196 (Mich. Ct. App. 2002), owners
sued, among others, city inspectors for gross negligence. The owners had purchased a home
after receiving a positive report from the inspectors. The inspectors argued that they were
immune from liability and that the gross negligence exception to governmental immunity was
inapplicable because they had not owed a duty to the owners. The trial court dismissed the
action against the inspectors, determining that they had owed the owners no duty and were
entitled to governmental immunity. REVERSED and REMANDED. 1) Under Michigan law,
governmental agencies are immune from tort liability if engaged in the exercise or discharge of
a governmental function. However, there is an exception to this general rule where an agencys
actions are grossly negligent. 2) Whether the inspectors owed a duty to the owners could not be
determined by looking to the public-duty doctrine and its special relationship exception, which
was how the case was argued before the trial court. Rather, the issue had to be addressed on
remand, in the context of the common-law framework with respect to duty.
In Affiliated FM Ins. Co. v. LTK Consulting Services, Inc., 170 Wash. 2d 442, 243
P.3d 521 (2010), there was a fire on a monorail system on which engineering firm had
overseen renovation and refurbishment. Operations contractor, to which city had granted the

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1:2.Duty versus negligence, Architects and Engineers 1:2 (4th ed.)

right and privilege to maintain and exclusively operate the monorail system including the
facilities, personal property, and equipment, sued engineer for negligence. Engineer argued that
operations contractor's losses were purely economic and that engineer was not liable in tort
for economic losses where it was not in contractual privity with contractor. The losses were
purely economic, in engineer's view, because they stemmed from business interruptions and
contractor's contractual obligations to repair the trains, and contractor did not have a property
interest in the monorail system. The district court entered summary judgment for engineer.
Contractor appealed to the Ninth Circuit Court of Appeals, which certified the following
question for the Washington State Supreme Court's review: May party A [operations contractor],
who has a contractual right to operate commercially and extensively on property owned by nonparty B [city], sue party C [engineer] in tort for damage to that property, when A and C are not
in privity of contract? The trial court had concluded that contractor's injury was outside the
bounds of tort recovery because it was strictly economic -i.e., business interruption and the
cost of repairing the damaged train. Yet economic losses are sometimes recoverable in tort,
even if they arise from contractual relationships. Under the independent duty doctrine, an injury
is remediable in tort if it traces back to the breach of a tort duty arising independently of the terms
of the contract. 1) Does an engineer's duty of care extend to safety risks of physical damage to
the property on which the engineer works? Engineer argued it had no obligation with respect
to risks of harm to the business expectancies of third parties. Engineer asserted that contractor
was in a position to negotiate better contract terms with the city, but contractor accepted the risk
that city could hire an engineer whose negligence would cause extensive property damage to
the monorail, and business losses. Engineer suggested that contractor made a deal, and should
be held to its bargain. HELD: An engineer's duty of care extends to safety risks of physical
damage to the property on which the engineer works. The harm in this case exemplifies the
safety-insurance concerns that are at the foundation of tort law. A fire broke out suddenly on the
monorail's train, endangering people and causing extensive physical damage to property. Given
the safety interest that justifies imposing a duty of care on engineers, engineer was obligated to
act as a reasonably prudent engineer would with respect to safety risks of physical damage. 2)
Does an engineer's duty of care extend to the persons who have a property interest to use and
occupy the property? A duty's scope can be limited to designated classes of persons. The issue
is whether a duty of care respecting damage to property extends only to the persons who hold
an ownership interest in that property. Engineer argued that regardless of whether contractor's
property interest could be classified as a lease, a license, or some other property interest, only the
owner of property can sue in tort for damage to the property. HELD: The scope of an engineer's
duty of care extends to the persons who hold a legally protected interest in the damaged property.
City granted contractor the concession right and privilege to maintain and exclusively operate
the Monorail System including the facilities, personal property and equipment, together with
the right to use and occupy the areas, described in this section. (Emphasis added). These are

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property interests in using and possessing the monorail, and thus contractor was within the scope
of engineer's duty of care. QUESTION ANSWERED: In light of the independent duty doctrine,
contractor could sue engineer for negligence. Engineer, by undertaking engineering services,
assumed a duty of reasonable care. This obligation required engineer to use reasonable care
with respect to risks of physical damage to the monorail system. Contractor enjoyed legally
protected interests in the monorail system, and engineer's duty encompassed these interests.
(Three justices dissented in part.).
William E. Pierson, Jr. represented insurer in this case, and provided the following comment:
The instant case once again highlights the difficulty courts
often have in differentiating those cases where the parties
to a contract attempt to allocate the risk of loss between
themselves versus those cases where the cause of the loss
involves fundamental considerations of safety that preempt
contractual limitations of liability. The key factors in this
case were: (1) no privity of contract between the operations
contractor and engineer; (2) the cause of loss was a fire
that required the emergency evacuation of passengers; and
(3) the operations contractor had secured property insurance
for the damaged property (Seattle Monorail) as opposed
to the owner and therefore had an insurable interest in
the damaged property. Notwithstanding these factors, this
case substantially redefines the economic loss doctrine under
Washington state law.
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